W S & C (Children), Re

In a fact-finding hearing under Part IV of the Children Act 1989, serious allegations do not attract a heightened standard of proof. The court must apply the balance of probabilities, taking account of the inherent probability or improbability of the alleged event. The more improbable the event, the stronger the evidence required. Complex or imperfect evidence, including inconsistent disclosures, equivocal medical evidence and unreliable witnesses, does not automatically prevent a finding of abuse. It requires particularly rigorous analysis. The judge must assess credibility, balance factors supporting and contradicting the allegations, and explain why the evidence satisfies the applicable standard. An appellate court should intervene only where there is a clear error in the analysis or fact-finding process.

The local authority brought care proceedings concerning four children. In a split hearing, the Manchester County Court considered whether two children had suffered sexual abuse, whether the appellant had perpetrated it, and whether the mother had failed to protect them. Her Honour Judge Kushner QC made findings that the appellant had sexually abused both children and made interim care orders concerning three children.

The appellant challenged the findings of fact, principally arguing that the evidence was too unreliable and contaminated to satisfy the guidance in Re H and R. The central issue was whether the judge had properly applied the balance-of-probabilities standard and whether her reasoning, particularly concerning uncertainty about the precise form of one assault, disclosed a material error.

1. Appeal dismissed. The judge was entitled to find that the appellant had sexually abused C and had indecently assaulted S by digital penetration.
2. Lord Nicholls’s guidance in Re H and R ([1996] 1 AC 563 (HL)) was not to be given any further gloss. The standard remained the balance of probabilities. The seriousness of an allegation affected the assessment of inherent probability and the cogency required to establish it, rather than creating a different or heightened standard.
3. Fact-finding in care proceedings under Part IV of the Children Act 1989 may involve complex family backgrounds, retractions, inconsistent accounts, partisan or unreliable witnesses, unsatisfactory investigations and equivocal medical evidence. Those features do not necessarily preclude a positive finding. They require the judge to proceed with particular rigour, assess witness credibility, identify factors supporting and contradicting the allegations, and explain why the evidence satisfies the applicable test.
4. The judge’s finding concerning C was supported by consistent allegations, the appellant’s admissions to touching her breasts, and the absence of exaggeration. Her reasoning satisfied the Re H and R test.
5. Although the judge’s discussion of S’s uncertainty as to whether the assault was anal or vaginal was unfortunate and could have been omitted, it followed an extended analysis of the evidence for and against the allegation. The essential finding was that S had been indecently assaulted. The uncertainty about the precise route of penetration did not undermine the overall reasoning because it did not matter in the context of the proceedings.
6. The appellate court would intervene only upon detecting a clear error in the analysis or in the fact-finding process. No such error was established. The appellant’s costs were to be subject to detailed assessment, and reporting restrictions were imposed.

• Court of Appeal (Civil Division): The appeal from findings of fact and interim care orders made by Her Honour Judge Kushner QC in the Manchester County Court was dismissed.